A commentary on the case of Abdelbaset al-Megrahi, convicted of the murder of 270 people in the Pan Am 103 disaster.

Sunday, 18 September 2016

The Lockerbie agreement between UK and Netherlands

[On this date in 1998 a treaty was concluded at The Hague between the governments of the United Kingdom and the Netherlands providing for a Scottish court to sit in the Netherlands to try the two Libyans accused of the Lockerbie bombing. The treaty can be read here. What follows is from an article written by me some years ago:]

The details of the arrangement -- the fine print -- are to be found in two documents: a British Order in Council (SI 1998 No 2251), made on 16 September 1998, conferring the necessary legal authority for Scottish criminal proceedings against the two Libyan suspects to be conducted in the Netherlands, and an international agreement between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom, concluded on 18 September 1998, making the diplomatic arrangements necessary for the "neutral venue" trial to take place. (...)

Although the British proposal was announced in late August 1998, it was not until 5 April 1999 that the two suspects actually arrived in the Netherlands for trial before the Scottish court. Why the delay? The answer is that some of the fine print in the two documents was capable of being interpreted, and was in fact interpreted, by the Libyan defence team (now chaired by Mr Kamel Hassan Maghur as successor to Dr Legwell) and the Libyan government as having been deliberately designed to create pitfalls to entrap them. And since the governments of the United Kingdom and United States resolutely refused to have any direct contact with either the Libyan government or the Libyan defence lawyers -- their attitude being that the scheme had been advanced on a “take it or leave it basis” and that no negotiations would be entered into -- these concerns could be dealt with only through an intermediary, namely the Secretary-General of the United Nations, Kofi Annan (or, in practice, the Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, Hans Corell). This meant that issues that could have been thrashed out and settled in a matter of a few hours in a face-to-face meeting took weeks and months to resolve. The US government, particularly the Secretary of State, Madeleine Albright, took every available opportunity to accuse the Libyan government and lawyers of stalling and trying to wriggle out of the assurances they had given over the years to support a “neutral venue” trial. My own clear impression, however, through my continuing contacts with the Libyans, was that if anyone was looking for pretexts to avoid a trial ever taking place, it was the US and UK governments.

Between 20 and 22 September 1998, Dr Jim Swire and I were again in Tripoli and were able to provide to the Libyan government and the Libyan defence team a measure of reassurance regarding some of the points that concerned them. However, it was we who had to inform the Libyan government that the chosen location in the Netherlands for trial was Kamp van Zeist, a former NATO base to which the air force of the United States still had extant treaty rights of access. This information was faxed to me (in Dutch, which I can read -- with difficulty -- through my knowledge of Afrikaans) at my hotel in Tripoli by a Dutch journalist who had developed an interest in Lockerbie and who had heard it from an official at The Hague. Dr Swire and I discussed whether we should inform our Libyan government contacts of the intended venue and came to the conclusion that we should do so. One compelling reason for doing so was to preserve the trust that the Libyan government appeared to have developed in us. Another was our assumption -- which may or may not have been justified -- that all our communications in Libya were monitored and that the Libyan authorities would have the information anyway as soon as they could arrange for a copy of the fax to be translated from Dutch into Arabic.

I anticipated that the news about the proposed location would cause the Libyans to renounce the "neutral venue" concept in high dudgeon and complain of the lack of good faith demonstrated by the British Government in selecting, or agreeing to, such a site. But they did not do so. When we raised the issue at our next meeting, the Libyan officials were remarkably relaxed about the matter. This, more than anything else, convinced me that the Libyan government and the Libyan defence lawyers genuinely wished a trial to take place and that the concerns they had expressed regarding details of the scheme now on offer were genuine concerns, not merely a colourable pretext for evading their earlier commitment to such a solution.

On 22 September Dr Swire and I had a further meeting with the Leader of the Revolution. On this occasion the meeting took place not in Tripoli but 400 kilometres to the east in a genuine (not reinforced concrete) Bedouin tent in a desert location inland from the town of Sirte. We drove most of the way in the usual government black Mercedes, transferring into a 4 x 4 only for the last few off-road miles. When at the tent nothing could be seen but sand and sky; but out of sight just beyond the nearest dunes was a lengthy convoy of communications vehicles, ambulances, canteen vehicles and troop carriers.

Surrounded by the sand dunes and by noisily ruminating camels, Colonel Gaddafi, Dr Swire and I discussed the details of the British scheme. He accepted my assurance that at least some of the concerns that Libyan government lawyers had raised were unwarranted and that it would be worthwhile to continue to seek clarifications and reassurances through the office of the Secretary-General of the United Nations regarding the remaining issues.

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